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Administration Affirms Criminal Screening Can Violate Fair Housing Act

Criminal Screening

In a filing in a New York lawsuit this month, the U.S. Department of Justice (DOJ) has reaffirmed the Administration’s position that some criminal screening policies used by housing providers create a disparate impact for minority applicants and are impermissible under the Fair Housing Act (FHA). 

At issue is a lawsuit alleging a property owner’s categorical prohibition on residents with negative criminal histories violates the FHA. The Administration’s statement argues that policies “that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact.” 

DOJ went further and stated that a housing provider must “prove with evidence – and not just by invoking generalized concerns about safety – that the ban is necessary.”

The filing cites recent guidance from the U.S. Department of Housing and Urban Development (HUD) extending protections for individuals with criminal histories.  This guidance prohibits the use of arrest records to deny residency and argues that denials based on convictions must follow an individualized approach that considers the nature and severity of the incident. 

NAA/NMHC continue to raise questions about the legal and operational impacts of the guidance and voice concerns about the potential conflicts between the DOJ/HUD analysis and legal precedent, most notably with last year’s Inclusive Communities Supreme Court case.

For more information on HUD’s recent fair housing guidance on criminal screening, please review the NAA/NMHC white paper, Criminal Conviction Screening Policies: Best Practices to Avoid Disparate Impact Liability.

Provided by NMHC as part of the NAA/NMHC Joint Legislative Program